THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE
UPON THE EXERCISE OF THIS WARRANT ARE TRANSFERABLE
ONLY IN ACCORDANCE WITH PARAGRAPH H AND I, HEREOF.
Void after 5:00 P.M., New York Time, on__________
Warrant to Purchase
__________ Shares
of Common Stock
WARRANT TO PURCHASE COMMON STOCK
This is to Certify That, FOR VALUE RECEIVED, __________ (the "Holder") is
entitled to purchase, subject to the provisions of this Warrant, from Q-Med,
Inc., a Delaware corporation (the "Company"), an aggregate of __________ shares
(the "Warrant Shares") of the Company's Common Stock, par value $.001 per share
(Common Stock) at a price equal to the average market price for the ten days
ending November 30, 1998, as certified by the CFO of the Company (the "Initial
Exercise Price") per share (or such other price computed by applying all
adjustments made on or before __________, in accordance with Section F. hereof,
to _________ as if it had been the initial Exercise Price per share hereunder)
at any time on or after ____________ until 5:00 P.M. New York Time, on ________.
The number of shares of Common Stock to be received upon the exercise of this
Warrant and the price to be paid for a share of Common Stock may be adjusted
from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "Exercise Price."
A. EXERCISE OF WARRANT. Subject to the following conditions precedent and the
provisions of Section H. hereof, this Warrant may be exercised in whole or
in part at any time or from time to time on or after ____________, and
before 5:00 P.M. New York Time on __________, or, if either such day is a
day on which banking institutions are authorized by law to close, then on
the next succeeding day which shall not be such a day, by presentation and
surrender hereof to the Company at any office maintained by it in Xxxxxxxx
Harbor, New Jersey, or at the office of its Warrant Agent, if any, with the
Purchase Form annexed hereto duly executed and accompanied by payment of
the Exercise Price for the number of shares specified in such form. If this
Warrant should be exercised in part only, the Company shall, upon surrender
of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder hereof to purchase the balance of the
shares purchasable hereunder. Upon receipt by the Company of this Warrant
at its office, or by the Warrant Agent of the Company at its office, in
proper form for exercise, the Holder shall be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the
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stock transfer books of the Company shall then be closed or that
certificate representing such shares of Common Stock shall not then be
actually delivered to the Holder.
B. RESERVATION OF SHARES. The Company hereby agrees that at all times there
shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be required for
issuance of delivery upon exercise of this Warrant.
C. FRACTIONAL SHARES. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. With respect to
any fraction of a share called for upon exercise hereof, the Company shall
issue to the Holder the next whole share.
D. EXCHANGE, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is exchangeable,
without expense, at the option of the Holder, upon presentation and
surrender hereof to the company or at the office of the Warrant Agent for
other Warrants of different denominations entitling the holder thereof to
purchase in aggregate the same number of shares of Common Stock purchasable
hereunder. The term Warrant as used herein includes any Warrants into which
this Warrant may be divided or exchanged. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction, or
mutilation of this Warrant, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Warrant, if mutilated, the Company will execute and
deliver a new Warrant of like tenor and date. Any such new warrant executed
and delivered shall constitute an additional contractual obligation on the
part of the Company, whether or not this Warrant so lost stolen, destroyed,
or mutilated shall be at any time enforceable by anyone.
E. RIGHTS OF THE HOLDER. The Holder shall not, by virtue here of, be entitled
to any rights of a shareholder in the Company, either at law or equity, and
the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth
herein.
F. STOCK DIVIDENDS, RECLASSIFICATION, REORGANIZATION, ANTI-DILUTION
PROVISIONS, ETC. This Warrant is subject to the following further
provisions:
1. In case, prior to the expiration of this Warrant by exercise or by its
terms, the Company shall issue any shares of its Common Stock as a
stock dividend or subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of such cases,
the Exercise Price per share of the Warrant Shares purchasable
pursuant to this Warrant in effect at the time of such action shall be
proportionately reduced and the number of Warrant Shares at that time
purchasable pursuant to this Warrant shall be proportionately
increased; and conversely, in the event the Company shall contract the
number of outstanding shares of Common Stock by combining such shares
into a smaller number of
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shares, then, in such case, the Exercise Price per share of the
Warrant Shares purchasable pursuant to this Warrant in effect at the
time of such action shall be proportionately increased and the number
of Warrant Shares at that time purchasable pursuant to this Warrant
shall be proportionately decreased. Any dividend paid or distributed
upon the Common Stock in stock of any other class of securities
convertible into shares of Common Stock shall be treated as a dividend
paid in Common Stock to the extent that shares of Common Stock are
issuable upon the conversion thereof.
2. In case, prior to the expiration of this Warrant by exercise or by its
terms, the Company shall be recapitalized by reclassifying its
outstanding Common Stock, par value $.001 per share, into stock with a
different par value or by changing its outstanding Common Stock with
par value to stock without par, the Company or a successor corporation
shall be consolidated or merge with or convey all or substantially all
of its or of any successor corporation's property and assets to any
other corporation or corporations (any such corporation being included
within the meaning of the term successor corporation in the event of
any consolidation or merger of any such corporation with, or the sale
of all or substantially all of the property of any such corporation
to, another corporation or corporations), in exchange for stock or
securities of a successor corporation, the holder of this Warrant
shall thereafter have the right to purchase upon the terms and
conditions and during the time specified in this Warrant, in lieu of
the Warrant Shares theretofore purchasable upon the exercise of this
Warrant, the kind and amount of shares of stock and other securities
receivable upon such recapitalization or consolidation, merger or
conveyance by a holder of the number of shares of Common Stock which
the holder of this Warrant might have purchased immediately prior to
such recapitalization or consolidation, merger or conveyance.
3. Upon the occurrence of each event requiring an adjustment of the
Exercise Price and of the number of Warrant Shares purchasable at such
adjusted Exercise Price by reason of such event in accordance with the
provisions of this Section F., the Company shall compute the adjusted
Exercise Price and the adjusted number of Warrant Shares purchasable
at such adjusted Exercise Price by reason of such event in accordance
with the provisions of this Section F. and shall prepare a certificate
setting forth such adjusted Exercise Price and the adjusted number of
Warrant Shares and showing in detail the facts upon which such
conclusions are based. The Company shall mail forthwith to each holder
of this Warrant a copy of such certificate, and thereafter said
certificate shall be conclusive and shall be binding upon such holder
unless contested by such holder by written notice to the Company
within thirty (30) days after receipt of the certificate by such
holder.
4. In case:
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(a) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or
any other distribution in respect of the Common Stock (including
cash), pursuant to without limitation, any spin-off, split-off or
distribution of the Company's assets; or
(b) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to subscribe for or
purchase any shares of stock of any class or to receive any other
rights; or
(c) of any classification, reclassification or other reorganization
of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, or conveyance of
all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, and in any such case, the Company shall mail to the Holder, at
least twenty (20) days prior thereto, a notice stating the date or
expected date on which a record is to be taken for the purpose of such
dividend or distribution of rights, or the date on which such
classification, reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation, or winding up is to take
place, as the case may be. Such notice shall also specify the date or
expected date, if any is to be fixed, as of which holders of Common
Stock of record shall be entitled to participate in said dividend on
distribution of rights, or shall be entitled to exchange their shares
of Common stock for securities or other property deliverable upon such
classification, reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation, or winding up, as the
case may be. The failure to give such notice shall not affect the
validity of any such proceeding or transaction and shall not affect
the right of the holder of this Warrant to participate in said
dividend, distribution of rights, or any such exchange and acquire the
kind and amount of cash, securities or other property as the Holder
would have been entitled to acquire if it was the record holder of the
Warrant Shares which could be obtained upon the exercise of the
Warrants immediately before such proceeding or transaction; provided
that, the Holder exercises the Warrants within 30 days after discovery
that such action or proceeding has taken place.
5. In case the Company at any time while this Warrant shall remain
unexpired and unexercised, shall dissolve, liquidate, or wind up its
affairs, the holder of this Warrant may thereafter receive upon
exercise hereof in lieu of each share of Common Stock of the Company
which it would have been entitled to receive, the same kind and amount
of any securities or assets as may be issuable, distributable
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or payable upon any such dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
G. OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted as
required by the provisions of the foregoing Section, the Company shall
forthwith file in the custody of its Secretary at its principal office and
with the Warrant agent, an officer's certificate showing the adjusted
Exercise Price determined as therein provided, setting forth in reasonable
detail the facts requiring such adjustment, including a statement of the
number of additional shares of Common Stock, if any, the consideration for
such shares, determined as such Section F. provided, and such other facts
as shall be necessary to show the reason for and the manner of computing
such adjustment. Each such officer's certificate shall be made available at
all reasonable times for inspection by the holder and the Company shall,
forthwith after each such adjustment, mail a copy of such certificate to
the holder.
H. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. Neither this Warrant,
the Warrant Shares, nor any other security issued or issuable upon exercise
of this Warrant may be sold or otherwise disposed or except as follows:
1. to a person who, in the opinion of counsel reasonably satisfactory to
the Company, is a person to whom the Warrant or Warrant Shares may
legally be transferred without registration and without the delivery
of a current prospectus under the Securities Act of 1933, as amended
(the "Act") with respect thereto and then only against receipt of an
agreement of such person to comply with the provisions of this Section
H. with respect to any resale or other disposition of such securities;
or
2. to any person upon delivery of a prospectus then meeting the
requirements of the Act relating to such securities and the offering
thereof for such sale or disposition.
I. REGISTRATION RIGHTS.
1. The Warrant Shares have not been registered under the Act. Upon
exercise, in part or in whole, certificate representing the Warrant
Shares shall bear the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act")
and may not be offered or sold except pursuant to (i) an effective
registration under the Act or (ii) an opinion of counsel, if such
opinion shall be reasonably satisfactory to counsel to the issuer,
that an exemption from registration under the Act is available."
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2. The Company agrees to register the Warrant Shares on Form S-8, or if
Form S-8 is not available, any appropriate form.
J. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the holder as follows:
1. The Company is duly organized and, as of the date of the original
issuance hereof, existing under the laws of the state of Delaware.
2. The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuing
Warrant Shares upon the exercise of this Warrant, such shares as may
be issuable upon the exercise hereof.
3. Warrant Shares, when issued and paid for in accordance with the terms
of this Warrant, will be fully paid and not assessable.
4. This Warrant has been duly authorized and approved by all required
corporate action by the Company and does not violate the certificate
of incorporation or by-laws of the Company.
[CORPORATE SEAL] -------------------------------
Xxxxxxx X. Xxx, President
Dated: November 13, 1998
ATTEST:
------------------------------
Xxxxxxx X. Xxxxxx, Secretary
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PURCHASE FORM
TO BE EXECUTED
UPON EXERCISE OF WARRANTS
TO: Q-Med, Inc.
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxx, XX 00000
The undersigned hereby exercises, according to the terms and conditions
thereof, the right to purchase _____________ Shares of Common Stock, evidenced
by the within Warrant Certificate, and herewith makes payment of the purchase
price in full,
Dated: ________________________________
Name: _________________________________
Address: ______________________________
Signature: ____________________________
UPON EXERCISE OF THIS WARRANT PAYMENT SHOULD BE MADE TO THE ORDER OF Q-MED,
INC.
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